Opinion
No. 103714.
June 7, 1996.
Leave to Appeal Denied June 7, 1996:
Court of Appeals No. 161905.
I would grant leave to appeal.
I
Defendant was being held in the Clinton County Jail awaiting sentencing for a conviction of assault with intent to do great bodily harm. After reviewing the presentence report with his attorney, he returned to a holding cell and became quite agitated. He unscrewed a nut holding a table to the floor and threw it against the bullet proof glass repeatedly. The window was chipped and cracked, amounting to, it was claimed, over $800 of damage.
He was charged with malicious destruction of property over $100, a felony. Evidence was admitted that he had not offered to pay to replace the window. The defense focussed on the actual value of the damage done to the window, implying that although the replacement cost was over $800, because the window was still functional, the damage was minor, and the jail had done nothing to change or repair it, the damage defendant should be held accountable for was less than $100.
His reliance on this argument became clear when he declined an invitation from the court to request a lesser included offense instruction of the misdemeanor of malicious destruction of property less than $100. The jury convicted and defendant was sentenced to three to six years in prison, consecutive to the term imposed for the underlying offense.
Defendant challenges the adequacy of his counsel who refused the lesser included offense instruction, the court's admission of the testimony that he had not offered to pay for the window, the sufficiency of the evidence that the damage done was greater than $100, the proportionality of the sentence, and the argument made by the prosecutor that the community deserved a new window.
II
It was error to allow in testimony, over objection, that the defendant had failed to offer to pay for the window to be replaced because that evidence is obviously irrelevant to his guilt or innocence. The judge allowed the question because he believed the defense had opened the door by implying it was an accident. The Court of Appeals concluded there was an error, but found it harmless in light of the "overwhelming" evidence of guilt.
Counsel had argued that damage done was less than $100. If he had been convicted of malicious destruction of property less than $100, a misdemeanor, he would not have received an habitual offender second enhancement, and in any event the time would have been concurrent, not consecutive as it now is.
The following colloquy occurred before the judge instructed the jury:
The Court: I'll give specific intent. Do you want lesser included offense?
[ Mr.] Spiers [ Defense Counsel]: I can't think of one.
The Court: It's under a hundred would be the lesser.Mr. Hayes: It really wasn't argued.
Mr. Spiers: No, uh-uh. It's all or nothing.
This lawyer's "I can't think of one" falls below an objective standard of reasonableness.
The defendant's lawyer was court appointed. The judge had the authority to instruct on the lesser offense even though this "lawyer" declined the instruction, and should have done so. The judge has a role to protect defendants against "unknowing" lawyers that they appoint.
I concur in the dissenting statement of Justice LEVIN.
MALLETT, J.
I would grant leave to appeal.